[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ JANUARY 30, 2009
THOMAS K. KAHN
No. 08-13872 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 08-00003-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT HIGGINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 30, 2009)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Robert Higgins appeals his sentence of 180 months of imprisonment for his
plea of guilty to sexual exploitation of a minor. 18 U.S.C. § 2251(a). Higgins
challenges for the first time on appeal the imposition of a mandatory minimum
sentence. We affirm.
Objections or arguments that are not raised in the district court are reviewed
for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
To satisfy that standard, a defendant must establish an error that is plain and affects
his substantial rights. Id. We then may exercise our discretion to recognize the
error, but only if it “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Garey, 546 F.3d 1359, 1363 (11th Cir.
2008).
There was no plain error at Higgins’s sentencing. Higgins argues that his
sentence is unreasonable because section 2251 divested the district court of
authority to consider the ordinary sentencing factors, 18 U.S.C. § 3553(a), but a
district court is bound by statutory mandatory minimum penalties even after United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). United States v. Castaing-
Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008) (“Booker’s instruction to district courts
to consider the factors in § 3553(a) in fashioning a reasonable sentence cannot be
read to authorize using the § 3553(a) factors to impose a sentence below an
applicable statutory mandatory minimum.”). Higgins also argues that his sentence
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is cruel and unusual punishment that violates the Eighth Amendment, but sexual
exploitation of a minor is a serious offense and there is no controlling authority that
180 months of imprisonment is a grossly disproportionate sentence for that offense.
See Protect Act, Pub. L. No. 108-21, 117 Stat. 650, 676 (2003) (“‘The prevention of
sexual exploitation . . . constitutes a government objective of surpassing
importance,’ New York v. Ferber, 458 U.S. 747, 757 (1982) . . . .”). “[A] sentence
which is not otherwise cruel and usual does not become so simply because it is
‘mandatory.’” United States v. Raad, 406 F.3d 1322, 1324 (11th Cir. 2005).
Higgins’s sentence is AFFIRMED.
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